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12/07/2019 03:34 AM
Pennsylvania House of Representatives
https://www.legis.state.pa.us/cfdocs/Legis/CSM/showMemoPublic.cfm?chamber=H&SPick=20190&cosponId=28204
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House of Representatives
Session of 2019 - 2020 Regular Session

MEMORANDUM

Posted: February 5, 2019 10:27 AM
From: Representative Rob W. Kauffman and Rep. Natalie Mihalek, Rep. Johnathan D. Hershey, Rep. Garth D. Everett
To: All House members
Subject: Helping Those Who Are Victimized to Confront Their Abusers
 
We are offering a package of important legislation designed to better protect crime victims from abuse and violence by helping those who are victimized to testify against and confront their abusers. Our bills will do this in four ways:

(1) Strengthening Protections for Young Abuse Victims: Helps additional child victims of sexual or other violent crimes testify against their perpetrators by modestly expanding the number of crimes for which the tender years exception to the general rule against admitting hearsay (e.g. out-of court statements) applies.

(2) Shielding Rape Victims From Irrelevant Cross Examination: Ensures that prior sexual assaults or other prior acts of victimization against a rape victim cannot be used at trial for the purpose of attacking the victim’s character.

(3) Protecting Intellectually Disabled and Autistic Victims: Provides the same protections afforded to vulnerable children under the tender years exception to the rule against admission of hearsay evidence to those victims who are intellectually disabled or severely autistic.

(4) Ensuring Victims Can Attend Proceedings Against Their Abusers: Grants to crime victims the right to attend any proceeding relating to their cases, unless the court expressly determines that attendance would materially alter the victim’s’ testimony.

More specific information about each bill is included below. We hope you will join us in supporting this package of bills so that our most vulnerable crime victims have a fairer chance at holding their perpetrators accountable.



Document #1

Introduced as HB505

Description: Strengthening Protections for Young Abuse Victims (Rep. Kauffman)

This legislation will modestly expand what is known as the tender years exception.  This bill is necessary because current law is limited to too few crimes and therefore fails to help enough child victims.

The tender years exception allows for the admission of a child’s out-of-court statement (sometimes referred to as hearsay) due to the fragile nature of young victims of abuse. In Pennsylvania, our law currently provides that a hearsay statement of a child victim under the age of twelve is admissible -- provided that the evidence is relevant and that the time, content and circumstances of the statement provide sufficient indicia of reliability, and that the young victim is not able to testify in court.

Unfortunately, current Pennsylvania law only covers a limited number of sexual or violent offenses with the tender years exception:  homicide, assault, kidnapping, certain sexual offenses like rape, burglary and robbery.  Current law does not cover other serious sexual offenses involving children:  human trafficking, incest, endangering the welfare of children (if the conduct involved sexual contact with the child), corruption of minors, sexual abuse of children, and sexual exploitation of children.  Each of these crimes is serious and significant and often has deleterious consequences on its young victims.

This bill would add these serious crimes to the tender years exception.  As with the current crimes covered by the tender years exception, statements made by children about the proposed new crimes would still need to be made in circumstances showing reliability. 

 
 

Document #2

Introduced as HB504

Description: Shielding Rape Victims From Irrelevant Cross Examination (Rep. Mihalek)

This bill seeks to carefully expand the rape shield law to cover instances where the rape victim may be asked about prior victimizations or allegations of victimizations that he or she has made for the purpose of attacking his or her character.

Pennsylvania’s rape shield law is designed to protect the victims of sex crimes during criminal proceedings.  Under current law, defendants are not permitted to introduce evidence of a victim’s past sexual conduct for the purpose of attacking the victim’s character because the character and sexual history of a victim is not probative to the issue of the guilt or innocence of the defendant.  Such evidence may be admissible, however if it is otherwise relevant.

Unfortunately, current law contains a significant loophole.  Because of the way current law is drafted, victims of sex crimes can still be cross examined about times they were victimized -- such as by acts  child abuse, assault, or rape.   
 
Asking a victim about times in the past when she was a victim or said she was a victim is another unfortunate way to dismiss the victim’s character, to demean her in open court, to introduce evidence irrelevant to whether the defendant is guilty, and ultimately to discourage victims from coming forward. 

Importantly, the rape shield law does not bar admission of such evidence in all circumstances.  By way of example, evidence that could explain objective signs of physical trauma or to establish specific bias against a defendant as a motive to fabricate is admissible, and would continue to be admissible under this legislation.  Instead, this bill seeks a narrow expansion of the rape shield law to cover instances of allegations of prior victimizations.

This bill will also expand the number of crimes subject to the protections under the rape shield law to include additional serious crimes such as human trafficking, incest, endangering the welfare of children (if the conduct involved sexual contact with the child), corruption of minors, sexual abuse of children, and sexual exploitation of children.
 

Document #3

Introduced as HB503

Description: Protecting Intellectually Disabled and Autistic Victims (Rep. Everett)

This bill will effectively apply the existing tender years exception to those with intellectual disabilities or severe autism.  This legislation will allow a reliable but hearsay statement from a victim who is intellectually disabled or autistic to be admissible in court, provided that the evidence is relevant, that the time, content and circumstances of the statement provide sufficient indicia of reliability, and the victim is otherwise not able to testify in person. 

According to the U.S. Department of Justice, people with intellectual disabilities are sexually assaulted at a rate seven times higher than those without disabilities. We also know that predators target people with disabilities or severe autism because they know these victims can be easier to manipulate or may have difficulty testifying later.  These victims should not be made to suffer more because they cannot necessarily communicate effectively in court.  If they have made statements outside of court that are deemed by a judge to be reliable, then these statements should be admissible. 

 
 

Document #4

Introduced as HB502

Description: Ensuring Victims Can Attend Proceedings Against Their Abusers (Rep. Hershey)


Under both the federal Rules of Evidence and the Pennsylvania Rules of Evidence, a judge may exclude a victim from portions of the trial. I have been told that a defendant may ask that the judge exclude the victim and that the motion is often granted.  However, under the federal Crime Victims' Bill of Rights, a victim has a right not to be excluded from a trial unless the court, based upon clear and convincing evidence, determines that testimony of the victim will be materially altered if the victim heard other testimony at trial. 

That same right is not present in Pennsylvania’s Crime Victims Act.  Consequently, the bill is modeled after the federal Crime Victims' Bill of Rights and would amend Pennsylvania’s Crime Victims Act to bring it in-line with federal law and expressly grant this same right to victims under state law.